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Eldred v. Ashcroft Oral Arguments
Posted by
michael
on Wed Oct 09, 2002 01:37 PM
from the true-colors dept.
from the true-colors dept.
PMuse and others wrote in about the oral arguments held today in the Eldred v. Ashcroft case challenging the most recent 20-year retroactive extension of copyright terms. Google News will cover the mainstream news stories about it; transcripts of the arguments will eventually be posted; but as I write this the only first-hand reports appear to be LawMeme and the Associated Press. Reader McSpew adds a link to a piece by Steven Levy explaining the importance of Eldred v. Ashcroft and what's really at stake. Update: 10/09 19:12 GMT by T : khkramer links to his own summary of the arguments, writing "I have press credentials
at the court, so I was able to take notes
during the argument, and in the summary I tried to cover
all of the major issues that the Justices
asked about."
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Not looking forward to the outcome (Score:5, Interesting)
And when they decide in Disney's favor, that will be a big flashing green light for Congress to sell out all other IP-related protections for the citizens without a second thought.
Say goodbye to the Public Domain. It was fun while it lasted.
Re:Not looking forward to the outcome (Score:4, Interesting)
This is a very disturbing trend we're seeing - the eradication of public domain and fair use rights through one-sided court battles. The question is, how long till a) there's a large scale backlash, or b) we have no fair use rights at all.
This is genuinely scary stuff.
Parent
Re:Not looking forward to the outcome (Score:5, Informative)
For each case you can name where money comes out on top, I can name a case where the party with more money came out on bottom.
Court isnt a place to undo bad legislation. It is a place to undo illegal legislation. Thats it. Period. The act congress passed probably was legal and will be declared so unless a million little things fall into place a certain way.
If you are pissed off about fair use, public domain, etc etc its NOT the courts fault. It is CONGRESS who made the laws. It is CONGRESS who passed the laws. It is the EXECUTIVE who signed them into law.
Courts are meant to be restrained. They are meant to take the word of the people (aka CONGRESS) unless the law is illegal.
This is exactly how things are supposed to work. If you dont like the laws, then get new ones passed.
Parent
Re:Not looking forward to the outcome (Score:4, Insightful)
This isn't about 1 ruling - it's about precedent.
Parent
Re:Not looking forward to the outcome (Score:5, Insightful)
Well, sure. Our justice system isn't 100% broken, but that's hardly a defense. If someone who's clearly in the wrong can triumph even 10% of the time simply because they've got lots of resources, then something's badly wrong; you don't need to see a 100% success rate before you cry foul.
Courts are meant to be restrained. They are meant to take the word of the people (aka CONGRESS) unless the law is illegal
Congress is also meant to be restrained. If it wasn't, the Framers wouldn't have written in so many checks and balances on its power. The constitution would be a whole lot shorter.
Personally, I think the unlimited ability to retroactively extend copyright spits on the notion of "limited times", both as the Framers intended it and as the Court has previously ruled on such constitutional limitations (ie, if you can't point to a concrete limit on a Congressional power, you can't call it "limited".)
Therefore the law is clearly illegal. And from that point, there's not much else to say to your argument.
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Re:Not looking forward to the outcome (Score:5, Insightful)
I agree with you. Lawrence Lessig and the plaintiffs agree with you. Nobody is saying that Congress can't set any term they want for new works. Hell, the plaintiffs' brief makes that clear. However, Congress can't retroactively extend copyright terms, which is the crux of the case.
Now here's the problem: the way the law is written, if you throw out one portion (the retroactive extensions), the rest of the law can't stand on its own. I don't purport to understand the full legal reasoning-- it's pretty arcane-- but it has something to do with severability and the court having to substantially rewrite law in order to make the changes (and courts don't like to do that.)
Plaintiffs aren't saying that the court shouldn't do that if it wants to-- all they're saying is that they want to throw away the retroactive part. Period. If Congress wants to meet tomorrow and extend the protection for new works to say, a million years, they could do so without fear of legal challenges.
No, no. See, if money were the deciding factor, or even a factor at all, then you'd expect to see the side with the most money winning over 50% of the time.
You've sent statistics into a place where they just don't want to be. Here's an example that might clear things up: if a group of people goes to our legal system arguing that the United States is on the continent of Africa, they should see a 0% success rate. Anything other than a 0% success rate indicates that there's a problem with our system. You don't have to see a 100% or even a 50% rate in order to realize that something is wrong.
Now let's imagine that some percentage (say 10%) of the US-is-in-Africa plaintiffs are prevailing. Now it might be informative to look at the winners of this ridiculous case and see what percentage are wealthy. And if a huge percentage were, you'd have some evidence that maybe things weren't working right.
What you're doing is saying "well, sure 100 wealthy people won on the 'US-is-in-Africa' argument, but look over here; at least 100 poor people won on the 'US-is-in-North-America' argument. Since we've got just as many poor people winning as rich people, the system is clearly not broken." Overlooking the fact that the folks who won the second argument won it because they were right, while the folks who won on the first argument won despite the fact that they were wrong.
I'm not saying that every rich person has a bad case. I am saying that I believe there have been a fairly large number of cases where one side prevailed despite the fact that they had a crap case-- but simply had the legal resources to win out. Your argument-- that poor people sometimes win their cases too-- doesn't address this.
Parent
Re:Not looking forward to the outcome (Score:5, Insightful)
My fingers are crossed, of course, but I am more hopeful.
Parent
Re:Not looking forward to the outcome (Score:4, Insightful)
This is a very good point -- and is an example of why it is so important to have strict constructivist judges on the Supreme Court. As long as it is understood that the Founders meant something by the words they put on paper, it is possible to say that the law means something. There may still be plenty of disagreements as to what the Founders meant, but they can generally be resolved. When the Constitution does need to `evolve', or `change', this can be done through the mechanism the Founders provided for it to do so -- Constitutional Ammendments.
In contrast, if we take the increasingly common, but frightening, view that the Constitution is a `living document', whose meaning `evolves' with the times, then the Constitution can be constantly reinterpreted to mean whatever each generation of judges think it would be best for society for it to mean.
Some may be willing to trust that this reinterpretation will always be done honestly, without reference to special interests, ideological aims, or corrupt goals, but IMHO it is much better for the stability of our system of government that we not make such trust the basis of the rule of law.
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Re:Bush's Newspeak? (Score:5, Insightful)
And yet he signed the US Patriot Act, which directly spits on the Constitution in so many ways. Has he vetoed anything since he's been in office ? or is he going to be known from here on out as George "Rubber Stamp" Bush.
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Re:Not looking forward to the outcome (Score:5, Funny)
Um...Isn't looking to Jefferson for the definitive answer in effect having one generation control the next?
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Re:Not looking forward to the outcome (Score:5, Interesting)
Nah. the SC just needs to decide what the absolute limit to "reasonable time" is, and state that as their interpretation.
And when they decide in Disney's favor, that will be a big flashing green light for Congress to sell out all other IP-related protections for the citizens without a second thought.
Come again? (are you saying that IP protections are good or that they're bad? Hard to grammatically determine your meaning, even if I can guess it.)
Let's look at the various forms of IP law:
Trademarks: Allready long-term, with required renewal and defense. No real problems there.
Patents: Limited term, no extension, and it makes "trade secrets" a matter of the public record after 20 (or so) years.
Copyright: Good side -> artists and authors don't have to be paranoid about their work being stolen by shady producers. (Bad contracts, yes, but not simple theft.) Bad side -> it lasts so darn long...
Personally, I predict that Disney et all will win, but the SC will render an opinion with language that implies or outright states that the current setup is the extreme maximum that should be permitted to copyright--or at least that it's approaching a constitionally breaching overextension.
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Re:Not looking forward to the outcome (Score:5, Insightful)
Judges seem to have a tendency to reject overly literal interpretations that defy common sense.
I believe it was one of Eldred's briefs that said something like: by calling for "limited" copyright terms, the Founders couldn't have possibly meant this, because they never would have chosen that wording. They might have written "...blah blah exclusive rights for a duration of Congress's chusing..." or some such. Yes, strictly and mathematically speaking if you add a "limited" extension to a "limited" term you will still have a "limited" term, but that's a pedantic reading that no reasonable person would think of as the most obvious way to understand the text.
It would be like literally reading all the male pronouns in the Constitution in order to draw the conclusion that no woman should be allowed to serve in federal elected office. It's defensible only in the twisted logic of someone with an unhealthy agenda but makes no sense in a reasonable context.
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Re:Not looking forward to the outcome (Score:4, Insightful)
There's a lot of things the SC could do. One reasonably likely possibility is that they disallow retroactive extensions -- thus placing "Steamboat Willie" and "Rhapsody in Blue" in the public domain -- but leave it up to Congress to decide what the limited time is. The argument that retroactive extensions don't "promote the arts and sciences" is a strong one; the argument that 75 years (or whatever it is now) is not a limited time isn't quite as strong.
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So where are the raw materials? (Score:4, Interesting)
After all, if there's no incentive for people to create things, nothing good will be created.
On the other hand, if there's no raw materials for people to create things, nothing good will be created. You can already start to see this happening in fields such as songwriting, where some songwriters are having trouble getting around the theoretical limit on the number of distinct melodies in the Western musical scale, which is fewer than 50,000 [everything2.com].
Parent
Flaw with the legal system (Score:4, Interesting)
And this, my friend, is the BIGGEST problem with our legal system. The power of law has been taken out of the hands of the citizenry by ever more arcane reasoning and procedures, and placed totally into the hands of a group whose continued professional employment REQUIRES that the field becomes even more arcane and obscure. This is why your previous quote:
While we (the laymen) prefer to debate the moral and ethical sides of the issue, the Supreme Court has no choice and no interest in any arguments other than legal and Constitutional ones. Right or wrong, that's the rules they play by.
The legal system is less concerned about doing right and fair by the citizens, and more concerned about maintaining their staus quo. It has gotten so bad that the common citizen cannot even adequately represent himself in court because he does not know the necessary procedures. It's like trying to go to court in a foreign country with a translator: you can say what you want, but is the translator getting it right on the other side? For a citizen to have a chance in court, he HAS to hire a lawyer. And this reliance on things other than right and wrong (ideas a citizen could use in court), things like obscure laws and precedents, is a manifestation of that trend toward obscuring the legal workings from the common man. As a result, we as citizens are losing a valuable part of the system that was established for our protection.
I, for one, think that adhering to the letter of a payola funded law instead of serving the common good is a mockery of what the legal system was meant to be.
Just my $0.02, this post was not a troll but is my true thoughts on the matter, flamebait though they are.
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Re:Flaw with the legal system (Score:5, Interesting)
The US Legal system was designed by lawyers (OK, some of them made more money from farming, but they were almost all trained as lawyers). This doesn't mean they consciously sat down and said "How can we write the Laws of Our New Nation in such a manner as to exclude almost all of Its Citizens...", it just means they built a system (after a lot of argument) which they were familiar with. Thus, though the names and powers of the different levels of court in the USA may be different from English Common Law, the foundational procedures and assumptions are identical.
English Common Law is based on 1500 years of 'person 1 accuses person 2 of a crime, they make their cases in front of someone of higher social status, who may (after King John and the Magna Carta) use the opinions of people of the same social status as the accused person to come to a decision of guilt and appropriate punishment.' This is an old system, and works, after a fasion. The problem is when the laws became so complex that it became necessary for a special group of people to spend their time doing nothing but keeping up with them. These were the first professional Lawyers. (Rome had people like Cicero, who would plead for people in the Senate and Courts, but he was foremost a brilliant speaker, and some of his greatest 'achievements' were convincing the Senate to do utterly illegal things.)
Because Lawyers knew so much about laws and how they worked, they were invited first by Kings, then by parliaments to write new laws. Because they already knew the language (Norman French in England, until the time of the Tudors) and jargon, they made the laws more and more abtruse and complicated until only an expert could make any sense of them.
Jefferson was a lawyer, trained in the old English tradition.
This is not the only form of Justice System. Francophone countries, for example, have a system based on the primacy of Judges, who are given special training as Judge, and investigator. If a Judge in France is trying a case, and requires more information, he or she is empowered to go and get it. They are not restricted to what the two advocates choose to tell them.
I am not saying here that the English Common Law Syatems throughout the world should be discarded in favour of the French system. I am just trying to point out that the Adversarial system has been twisted over the centuries, and has not been open for 'normal people' to understand or influence for over a thousand years. It has not been meant to be. Campaigns that all new laws must be written in plain English are probably our best hope to changing this. (eg., "The Party of the First Part has been accused of the Unlawful killing of three persons, but has been found non compos mentis, and is therefore remandered in custody in a house of mental treatment until such time as they are found compos mentis when they shall be brought to trial again." = "This person has been accused of murder. Investigating Doctors have determined that he is mentally unwell, and not able to stand trial. He will be imprisoned in a mental hospital until he is sane. If he is ever found sane, he will be brought back to court, and will then be tried.")
All I'm trying to say is, it is sad, but this is way it was designed to be. It is not broken.
The power has never been in the hands of the citizenry. Deliberately.
My $0.02, and probably also will be considered a troll. I just think the first requisite of an intelligent life is memory
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what i heard from someone who was there (Score:5, Informative)
Re:what i heard from someone who was there (Score:4, Informative)
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Re:what i heard from someone who was there (Score:4, Insightful)
To add to this, I don't see how voiding the retroactive 1976 extensions, or any of the previous retroactive ones, would matter significantly - because all of the copyrights on the works benefitting from those extensions would have already expired by now anyway had the 1998 law not been passed! So declaring those previous retroactive extensions unconstitutional (even if anyone is asking for that, and Eldred certainly isn't) would not in itself affect the present-day copyright status of anything.
It would only be relevant for people pursuing copyright violations committed when a work was under the protection of the 1976 extensions, I would think.
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Not convenient enough for O'Connor? (Score:5, Insightful)
I like her notion, though. We should potentially uphold an unconstitutional law because it would be too inconvenient to change it.
Yes, that's the sound of the Framers spinning in their graves.
Parent
Difference between Bono and previous extensions... (Score:5, Insightful)
Assuming standard lifespan, prior to Bono, material copyrighted about the same time I was born might expire before I die. Therefore, it's limited-term. After Bono, copyrights all live longer than me. From my perspective, or any but the oldest living people, that qualifies as "unlimited time."
The hole in this argument is that it probably messes with the 76 term extension, as well. But that's probably good. I'd favor "threescore and nine" as a maximum copyright term over what we have, today.
The trend itself needs to be considered, and the eventual damage. If this stands, we all expect another extension in just under 20 years. Are we ready to declare the Public Domain dead? Do we understand all that that means to our country?
Parent
Did anyone notice... (Score:5, Funny)
-Robert
Justices often ask the opposite... (Score:5, Interesting)
sPh
Gigantic Loophole of American System of Law (Score:4, Insightful)
However, once the matter goes back to Congress, we are presented with the same problem yet again. Congress now can pass a placation act which will satisfy the Supreme Courts demand, and then in the future extend the "limit on limits". Its a giant loophole whereas they are not actually extending the limits themselves, merely the amount of times the limits can be extended. IANAL, but there is a term for this kind of layered system of laws.
In such a case another lawsuit may be brought, but what will the climate of the Supreme Court be at that point, after another x amount of years of corporate lobbying (or, for the positive thinking, of lobbying for the public domain)? A corporation thinking in the long term is probably not worried at all.
Re:Gigantic Loophole of American System of Law (Score:5, Interesting)
Federal legislation is often broad-brushed and implemented with big clumsy fists. Sometimes it's not enough. Sometimes it is enough. Sometimes it's a little too much but it's tolerated. And sometimes, it really stops something that "outta be allowed". So we have Eldred v. Ashcroft saying that the copyright law extensions are now really too long to be sensible.
Given the relatively few cases the Supreme Court takes up, I think it's a really good sign that this one was. The corporations now have to hold their breath--you can't lobby the Supreme Court.
And, although there are plenty of experts that can speculate, it's hard to say whether they will uphold the existing legislation or declare it unconstitutional (and for what reasons). Whatever the outcome, there's a newly painted guidepost in U.S. intellectual property law to work with.
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Disney and Winnie the Pooh (Score:4, Informative)
Mickey Mouse (Score:5, Insightful)
TM: can't print Mickey's name on the box (Score:5, Informative)
Could someone explain how trademark could be used to control an article of expired copyright
If and when the Bono Act is overturned: "Of course, you can sell copies of 'Steamboat Willie' and 'Plane Crazy', but you won't be able to print Mickey's name or likeness anywhere on the box."
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Re:Mickey Mouse (Score:5, Informative)
That movie actually has the value it does specifically because it fell out of copyright.
That movie was a massive flop, losing the studio money and sitting unused in a vault for years and years until the copyright ran out.
Fast-forward a few years - TV stations are swamped with royalty payments for their shows, and need something to put on during the Christmas season. Someone notices this crappy little film that nobody really liked or remembers... but it's royalty-free, so we're gonna play it constantly to fill airtime. (Heck, it's even directed by Frank Capra [imdb.com] and stars James Stewart [imdb.com] and Donna Reed [imdb.com], so it might even pull a small audience.)
Now fast-forward to a few years later - everyone in the US has seen that show dozens of times every year at Christmas. Watching it has become a tradition... Suddenly it's no longer that crappy little film, but one of the most popular Christmas classics of all time.
If It's a Wonderful Life [imdb.com] had remained in copyright, it would have been lost with all those other barely-remembered movies from the 1940s.
--The Rizz
"The more things change, the more they remain insane." --Johnny Carson
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NPR had come good coverage this morning (Score:5, Informative)
my notes on the oral arguments (Score:5, Informative)
I was at the oral arguments this morning, and since I have press credentials, I was able to take lots of notes.
My summary [allafrica.com] tries to cover all of the main points the Justices raised in their questioning of both sides.
I was a bit discouraged by how much attention the Justices paid to problems with Lessig's Article I arguments, and how little -- none at all -- they paid to the claim he makes in the brief (and mentioned briefly during the questioning) that the birth of a new technology regime (the Internet) should have a profound impact on how we craft copyright law.
I don't think there's much grounds for guessing which way the court will go on this case. Certainly the people in the pressroom and in the lawyers' lounge today weren't making many predictions. Lessig's argument is so narrowly constructed, and the copyright clause of the constitution is both so clear in intent and non-specific in its wording, that the court really could go either way. Certainly four justices had to think the possibility is there to decide for the petitioners or the Court wouldn't have taken the case. But there was a lot of hard questioning of Lessig, today, and I didn't think he was able to definitively reframe any of the issues that the Justices were concerned about.
Re:my notes on the oral arguments (Score:4, Informative)
how little -- none at all -- they paid to the claim he makes in the brief (and mentioned briefly during the questioning) that the birth of a new technology regime (the Internet) should have a profound impact on how we craft copyright law.
For Ginsburg, at least, this should all be old hat; her daughter who wrote one of the classic treatments of it in a Representations article about 10 years ago: J. C. Ginsburg, "Copyright Without Walls ? Speculations on Literary Property in the Library of the future", Representations,42. On the assumptions that one's own daughter's works should be canon, I imagine she's familiar with it.
See Jane C. Ginsburg's [columbia.edu] CV and this Ruth Bader Ginsburg Biography [findlaw.com].
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Re:my notes on the oral arguments (Score:5, Insightful)
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Why Patents are 20 years and copyrights are 95 (Score:4, Insightful)
I wish we had an extend by paying setup (Score:5, Interesting)
Undoubtedly, Disney would stand to lose $$$$$$$ if Mickey Mouse were released from copyright, and it is in their interests to do whatever it takes to preserve it. I can in fact sympathize with that. It is a huge corporate symbol for them, and losing it would hurt bad.
But in order to keep Mickey Mouse, they utterly trash the copyright system, totally destroying the idea of public domain. Some would argue that this is intended, but I'm not quite that cynical. (Yet.)
Why can't we have a sliding scale, where if a corporation wants to hold onto copyright longer than the default, they pay some nontrivial amount of money every few years past the default time in order to renew. That way symbols like Mickey Mouse, which are still viable moneymakers for corporations, can be maintained as long as they are profitable. And anything which isn't lapses into the public domain. Why should that bother them? A few tens of thousands wouldn't even make Disney blink.
Really, I don't think we are out to grab Mickey Mouse away from Disney. What happened to finding a middle ground? I thought that's what American politics was all about.
Pooh, not Mickey. (Score:5, Interesting)
Disney would stand to lose $$$$$$$ if Mickey Mouse were released from copyright
The Bono Act wasn't designed to preserve the monopoly on Mickey Mouse as much as it was designed to preserve the monopoly on nu-skool Winnie-the-Pooh (a relatively recent Disney creation) and old-skool Winnie the Pooh (to which Disney bought the rights from the Milne family). Disney makes much more annually from sales of Pooh merchandise than from sales of Mickey merchandise.
Why can't we have a sliding scale, where if a corporation wants to hold onto copyright longer than the default, they pay some nontrivial amount of money every few years past the default time in order to renew.
Others have proposed similar plans on both Slashdot and Kuro5hin. An interesting plan would make the renewal fees increase exponentially for every subsequent re-extension.
FREE THE BEAR!
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"promote the progress of science and useful arts" (Score:5, Insightful)
It seems that the original intent of "copyrighting", as specified in the Constitution, has been mostly abandoned in the current debate. The writers of the Constitution weren't really concerned with the economic aspects and the rights of capitalists as they were with the welfare of society as a whole.
Ted Olson's case seems to be mostly based in the economic rights of corporations and creators in our capitalist economy. The Supreme Court, who are supposed to use the Constitution as the final arbiter in their decisions, are mostly concerned with legal precedents and the equity of past and present copyright holders.
Does society really benefit from a given legal entity (Disney Corp., for example) holding the rights to a cartoon mouse for eternity? Call me a socialist, but it seems to me that the welfare of society should be given at least an equal consideration to the individual rights of copyright-holders. That's what the founding fathers intended in the constitution, where "economic rights" are secondary to the "natural rights" of mankind.
If only the courts knew how to code (Score:4, Funny)
Yeah, guys, and this loop terminates:
int limitedTime = 14;
for ( int i=0;i<limitedTime;i++) {
System.out.println("Copyright Protected");
limitedTime += 50;
}
fools.
Re:If only the courts knew how to code (Score:4, Funny)
int limitedTime = 14;
for ( int i=0;i<limitedTime;i++) {
System.out.println("Copyright Protected");
limitedTime += 50;
}
[/quote]
Actually that loop does terminate. The limitedTime variable is an int, which will wrap to a negative number.
Good thing you aren't in congress or you'd be making bad code into laws!
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Re:If only the courts knew how to code (Score:4, Funny)
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Corporations are INsane on this one. (Score:4, Insightful)
Its insane. Absolutly insane that these people have zero regard for anything but themselves, I have to admitt, it disgusts me sometimes that I live in this society.
I wonder why they didn't think of... (Score:5, Insightful)
Here's the theory: Because of existing copyright law, whenever a creator creates a work, the creator brings into being a bundle of property rights, analogous to the various rights associated with the ownership of real property. Essentially, the copyright is divided into two interests:
1. A present interest owned by the creator of the work (and his assignees) for the duration of the period set forth in copyright law; and
2. A future interest in the public domain.
By extending copyright retroactively, Congress is taking a property right away from the public domain without any compensation in violation of the takings clause of the Fifth Amendment.
There are hurdles to cross, such as whether or not the "public domain" has any rights. In the alternative, I would argue that the public domain is held in trust by the government for all the people, in the same way that the area between high tide and low tide is held in the public trust, and apply the law related to public trust land to the public domain rights created by copyright.
What TV does to you... (Score:4, Insightful)
Ah well. At least cable is showing L&O every hour on the hour nowadays, so I can get home and get a fix then. GET 'EM JACK!
My take on copyright extensions (Score:5, Insightful)
I don't see the Supreme Court getting into an argument with Congress over what is reasonable, so for new works, I wouldn't overturn the new limit. (I would instead work to overturn Congress at the ballot box, but that's another issue.)
I was there (Score:5, Informative)
This was my first time at oral arguments, so I have to admit I don't have anything to compare them to. For example, I felt that the Justices were harder on Theodore Olson (Solicitor General, argued the case for the Government) than they were on Larry Lessig (lawyer for the petitioners). This may just be because the justices know him better, though. To make my life even more difficult, the seat I was assigned had a nice fat column between me and everybody of significance. I could see the back of Justice Ginsburg's chair before she sat down. I was able to identify some of the Justices from their voices, but it was difficult. Oh, Declan McCullagh was there in a leather jacket. Didn't wear it to the courtroom, though. He'll probably have pictures up on his site later today, and I've got a couple I'll put up here.
On to the case: the first question came from Justice O'Connor, asking about the previous copyright extensions, which had not been challenged. Prof. Lessig pointed out that the 1790 Copyright law established a copyright for works already existing, but that was the first time such a law had been passed here -- before that existing works had no Federal copyright protection. That made the protection different from the extensions passed in the following years. Justices O'Connor and Rehnquist proceeded to press him on the significance that even the following extensions were unchallenged, and during Olson's time he pointed this out, saying that the petitioners therefore had a heavy burden challenging a law that had essentially stood for centuries. Prof. Lessig's response was that there has been a fundamental change, even since the copyright term changes made in 1976. In 1976, the copyright affected mainly commercial copyright producers and distributors, and they were the ones who benefitted from the laws. Now, however, the popularization of the Internet has made copyright an issue for many people. As an example, the primary petitioner in this case, Mr. Eldred, publishes public domain books on his web site, and he does it for free. Such a thing was unheard of in 1976. Mr. Eldred is only hurt by this copyright extension: he sees no benefit. The 1976 law would be unconstitutional if challenged now, but no one was seriously injured by it when it was passed, so it went unchallenged.
A sense I got from several justices was that they didn't approve of the copyright terms, but didn't see a Constitutional argument against them. Justice O'Connor came right out and said, "I can find a lot of fault with what Congress did here," and Justice Breyer, when questioning Olson, cited some numbers showing how much money copyright owners gained from the extended terms, compared to the losses to the public due to copyright restrictions. The counter argument was that copyright terms provide an incentive for distributors to preserve their works. While it was conceded by Lessig that Congress could not grant a copyright on a work currently in the public domain, Congress could grant an extended term conditioned on a promise to preserve and actively distribute a work. This would allow works for which the copyright owner could not be identified (such as many of those sought by Mr. Eldred) to pass into the public domain.
While I generally felt that the Justices were harder on Olson, they didn't seem to be too happy with the Consitutional arguments given by the petitioners. One point they did seem to like, and pressed Olson repeatedly with, was that, if the preambular part of the Copyright Clause is not read to be a limitation on copyright terms, and if the word "limited" does not mean "fixed" or "immutable," is there any limit on Congress's power to extend copyright terms? Olson's reponse was to point out that that is not the issue before this court, and I have to agree. While the Court is certainly free to say that the Congress's extensions are subject to judicial review on the grounds that "limited" need be reasonable or something like that, and establish some guidelines for that review, it has not been asked to do that in this case. More importantly, despite the Justices' feelings that there should be judicial review, lack of an explicit Constitutional limit on Congress's interpretation of "limited" does not create that power for the Court. It simply may be the case that Congress has the power to extend it however long it wants, as long as it is not "unlimited." The recourse for that, of course, is elections. Olson pointed out that the Framers had the power to put a specific length of time in the Constitution, and Jefferson actually encouraged it, but they eventually chose not to; they chose to give that power to Congress.
Lessig cited a figure he claimed a group of economists calculated: the current copyright terms give copyright owners 99.8% of the benefits they would get under a perpetual term. I would guess that assumes the benefits converge, although I'm no economist. I'm also no Supreme Court scholar, but my gut feeling right now is that the Court is going to strike down CTEA and establish some guidelines for what is an acceptable copyright term. I personally don't agree from a Constitutional standpoint. We'll find out in a couple of months, I suppose.
Information from the source (Score:5, Interesting)
DMCA is toothless without the Bono Act (Score:5, Insightful)
"Sorry, permission to use this Mickey Mouse doll has been denied due to DRM hardware reporting timeout on copyright extension laws."
The DMCA is toothless without the Bono Act because it's perfectly legal to hack a DRM system in order to retrieve a perfect digital copy of a public domain work. The DMCA's circumvention ban (17 USC 1201) [cornell.edu] applies only to "works protected under this title", i.e. works under a subsisting copyright, and makes an exception for devices that are designed and marketed for a substantial use other than breaking DRM on copyrighted works without permission. Without the Bono Act, the DVD containing "Steamboat Willie" would no longer be entirely a "work protected under this title", as compilation copyrights apply only to the compilation as a whole, not to the original works. Thus, there would be a substantial legitimate use for DeCSS.
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Alice's Adventures in Wonderland is already PD (Score:5, Informative)
they will never take Alice In Wonderland!
Correct. Alice's Adventures in Wonderland by Lewis Carroll has fallen into the public domain in the United States and is available through Project Gutenberg [promo.net]. Even if the Bono Act had been in effect since the time of its publication, the copyright would have expired in 1969 (1898 death of Carroll + 70 + end of the year) under the author rule or 1961 (1865 first publication + 95 + end of the year) under the work-for-hire/pre-1978 rule. But in the USA, copyright term extensions do not re-copyright works whose copyrights have already expired; thus, all works first published on or before December 31, 1922, are in the public domain in the USA.
The EU is a different matter; copyright law was revised to fit the terms in effect in Germany (life plus 70); works that had been in PD for quite some time fell under copyright once again. In addition, some European countries have granted extensions for works published before World War I, for works published before World War II, and for works published by authors who died in World War I or World War II.
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I'm not much of an Ashcroft fan .. (Score:4, Insightful)
This has nothing to do with personal statements or actions that have been made by either Reno or Ashcroft.
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Re:The day is going to come... (Score:4, Funny)
First of all, where are you going to find a condom big enough to hold a motherboard?
Second, I'm a fat bastard, and I don't think I can swallow a motherboard whole.
Third, not even the goatse.cx guy could shit one out the other end.
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